Greenville Women's Clinic v. Commissioner, South Carolina Department of Health & Environmental Control

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KING, Circuit Judge,

dissenting:

We today address significant questions arising from one of the most divisive and contentious issues in our nation’s history. Since Roe v. Wade was decided by the Supreme Court in 1973, the struggle over the existence and scope of a woman’s constitutional right to choose has been a constant part of our political landscape. In recent years, state legislatures have taken an increasingly active role in regulating access to abortion; in many places, burdensome regulations have made abortions effectively unavailable, if not technically illegal. It is this type of regulation — micromanaging everything from elevator safety to countertop varnish to the location of janitors’ closets — that is challenged in *372this case. 24 S.C.Code Ann. Regs. 61-12 (Cum.Supp.2001) (the “Regulation”).1

The State of South Carolina is entitled to make a value judgment, as a matter of its public policy, to favor childbirth over abortion. Rust v. Sullivan, 500 U.S. 173, 192-93, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); Maher v. Roe, 432 U.S. 464, 474, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). In accordance with this prerogative, South Carolina has made its preference clear. For example, while a citizen of the Palmetto State may obtain a “Choose Life” automobile license plate from the authorities, he may not obtain a “Choose Choice” license plate.2 S.C.Code Ann. § 56-3-8910 (West 2002).3 Insofar as the legislature in South Carolina wishes to limit the choices of its female citizens, it has been largely successful. Eighty percent of the State’s counties lack an abortion provider, and between 1992 and 1996, the number of such providers in the State fell from eighteen to fourteen. Stanley K. Henshaw, “Abortion Incidence and Services in the United States, 1995-1996,” Fam. Plan. Persp., Vol. 30, No. 6, November/December 1998.

South Carolina is not, however, entitled to adopt and pursue an anti-abortion agenda at the expense of constitutional rights. Having carefully examined the constitutional challenges made by Greenville Women’s Clinic and other abortion providers (collectively, the “Plaintiffs”) to aspects of the Regulation, I am inexorably led to conclude that certain of its provisions violate the Constitution. I part company with my friends in the majority in four respects:

First, the majority improperly reverses the district court on the informational privacy issue;
Second, the majority ignores the conflict between the clergy referral requirement and the Establishment Clause;
Third, the majority upholds unconstitutionally vague and ambiguous provisions of the Regulation; and Fourth, the majority endorses a stan-dardless delegation of state power that contravenes the Due Process Clause.

I will discuss each of these points in turn.4

I.

On the first of the Plaintiffs’ four chal*373lenges to the Regulation, I would affirm the district court and hold § 102(F)(2) (the “Disclosure Provision”) to be unconstitutional.5 The Disclosure Provision concerns the State’s access to private medical records,6 and the district court properly found that South Carolina had failed to demonstrate a sufficient interest in obtaining information identifying the female patients of abortion clinics.7 The majority incorrectly reverses the district court on this issue.

The Supreme Court has identified two types of privacy rights, both rooted in the Fourteenth Amendment. The first is the right of citizens to make certain personal choices, such as those discussed by the Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and its progeny. The second protects “informational privacy,” and it consists of a citizen’s right to control the release of personal information. Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). The public disclosure of private medical records, and the personal and confidential information contained therein, implicates this informational privacy right.

Of course, the right to informational privacy is not absolute, and a state does not necessarily violate that right by requiring disclosure of private medical records. Id. at 602, 97 S.Ct. 869. To determine whether the Disclosure Provision infringes the right to informational privacy, we consider three factors. First, the information must fall within the zone of the constitutional right to privacy. Walls v. City of Petersburg, 895 F.2d 188, 192 (4th Cir.1990). Second, if the information is within this zone, then “the defendant has the burden to prove that a compelling governmental interest in disclosure outweighs the individual’s privacy interest.” Id. Finally, any *374safeguards provided by the State against improper disclosure will serve to dilute the individual’s privacy interest. Overall, the State’s need for private information must be balanced against the interest of the person whose privacy is at stake. Id. at 192-94. As the district court properly determined, South Carolina has failed to demonstrate a sufficient need for access to patients’ private identifying information, rendering its Disclosure Provision invalid. See Greenville Women’s Clinic v. Bryant, Memorandum of Decision, CA No. 6:96-1898-20 (D.S.C. Aug. 31, 2001) (the “Memorandum of Decision”).

A.

The constitutional right to privacy in pregnancy-related medical information is firmly established. Indeed, the Supreme Court has emphasized that the decision of a woman to exercise her constitutional right to choose “is an intensely private one that must be protected in a way that assures anonymity.” Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747, 766, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), overruled in part on other grounds, Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992); see Hodgson v. Minnesota, 497 U.S. 417, 463, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (“Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision ... whether to end her pregnancy.”) (quoting Thornburgh, 476 U.S. at 772, 106 S.Ct. 2169); see also Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (subjecting drug testing program to scrutiny under the Fourth Amendment because it threatened to reveal private information such as pregnancy). Given the Court’s recognition of the private nature of reproductive decisions, the women seeking services at abortion clinics in South Carolina unquestionably possess a constitutionally protected privacy interest in the information sought by the State under the Disclosure Provision.

B.

In assessing the validity of the Disclosure Provision, we must also consider whether South Carolina has established “a compelling governmental interest in disclosure [that] outweighs the individual’s privacy interest.” Walls, 895 F.2d at 192; see also Carey v. Population Servs. Int’l, 431 U.S. 678, 686, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). In this regard, the pivotal question is whether the State can sufficiently justify its request for disclosure of constitutionally protected information.

The Supreme Court has recognized that a state has an interest in protecting maternal health, and that it may properly collect otherwise private medical information related to this purpose. See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 80, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). However, as Walls informs us: the “regulation ‘may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.’ ” Walls, 895 F.2d at 192 (quoting Carey, 431 U.S. at 686, 97 S.Ct. 2010).

South Carolina has failed to demonstrate that it has a compelling need to copy any patient identifying information. The only justification offered by the State is that such information is needed in order to investigate complaints against abortion clinics. However, the State has failed to demonstrate a need to contact patients in such situations. In fact, complaints involving compliance with issues such as structural building requirements and staff qualifications could be fully investigated by the State without contacting the female patients. And on issues involving patient *375care, the affected patients would most likely consent to the disclosure of their identity.

In limited situations, the State might have a valid need to obtain a patient’s identity in order to investigate anonymous complaints or to seek corroborating evidence. However, South Carolina’s interest in obtaining patients’ identifying information in those limited situations does not support the disclosure requirement in the Regulation, which gives the State access to information identifying every patient of every abortion clinic in the State. Such a disclosure requirement is vastly overbroad: in the apparent expectation that, someday, some of the information might be useful, it tramples the privacy interest of every woman who seeks an abortion at a South Carolina clinic.

In short, South Carolina has failed to demonstrate a compelling need for access to information identifying every patient of the abortion clinics in the State. As the district court properly recognized, the goals of the Disclosure Provision would be adequately served if the State is provided with access to redacted records. Memorandum of Decision, at 8-9. And in those limited instances where redacted records might be insufficient, the State has failed to narrowly tailor the Disclosure Provision to serve its interest in disclosure.

c.

In assessing whether the Disclosure Provision contravenes the right to informational privacy, we must also consider the probability of the unauthorized disclosure of the information collected by the State. Walls, 895 F.2d at 194; see also Watson v. Lowcountry Red Cross, 974 F.2d 482, 487-88 (4th Cir.1992). Any safeguards designed by the State to prevent such improper disclosure serve to weaken a woman’s privacy interest and reduce the need to prohibit South Carolina from collecting the information in the first place. Walls, 895 F.2d at 194.

In this case, the State has failed to show that it will protect the private medical information of female patients. To begin with, the statutes relied on by South Carolina do not erect an absolute bar to public disclosure of such information. See S.C.Code Ann. § 44-7-810 (West 2002);8 S.C.Code Ann. § 44-7-815 (West 2002).9 To the contrary, those statutes contain gaping holes in the protections they afford against public disclosure. For example, § 44-7-310 authorizes the public disclosure of identifying information during li-censure proceedings. And § 44-7-315 requires, upon written request, the public disclosure of information obtained through inspection.

While § 44-7-315 serves to prohibit South Carolina from “diselos[ing] the identity of individuals present in a facility,” it *376fails to explain what “present in a facility” is intended to mean. Under one interpretation, it might only protect the identity of persons present in the facility at the time records are released. Under another plausible interpretation, it could cover only those persons typically present in the facility — namely the permanent staff. And among other possible interpretations, it could mean that the identity of every person ever present in the facility may not be disclosed, which would include investigators and other State officials. In short, this ambiguous statutory language does not sufficiently ensure the confidentiality of the female patients of South Carolina abortion climes.

Second, despite the State’s assurances of confidentiality, private medical information has been leaked to the public. Although George Moore, the Director of Outpatient and Home Care in the Department of Health and Environmental Control (“DHEC”), testified that “strict confidentiality is maintained as it always is, records are secured in the office, and individual records are not released under Freedom of Information Act requests,” South Carolina has failed to follow this directive. In point of fact, the evidence shows that abortion protesters distributed a flyer containing a photocopy of a medical record obtained from DHEC concerning a fifteen-year-old girl’s pregnancy termination. Furthermore, physicians testified that similar types of confidential information collected by the State have been made available to the public.

D.

It is of significance, in assessing the validity of the Disclosure Provision, that the recordkeeping requirements established by South Carolina differ markedly from the types of data collection systems other courts have approved. For example, in Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), the Supreme Court concluded that New York was constitutionally permitted to obtain and record, in a centralized computer file, the names and addresses of all persons who obtained, pursuant to a doctor’s prescription, certain controlled substances for which there were both lawful and unlawful markets. Id. at 591-94, 97 S.Ct. 869. In that situation, New York provided elaborate security against the improper disclosure of private medical information, including storing the records in a receiving room surrounded by an alarmed and locked wire fence, and requiring destruction of the records after five years. Id. at 593-94, 97 S.Ct. 869. Further, the public disclosure of patients’ identities was expressly prohibited by both a statute and an administrative regulation. Id. at 594-95, 97 S.Ct. 869.

The situation in this case differs markedly from Whalen in at least three respects. First, as discussed above, see supra Part I.C., South Carolina’s Disclosure Provision does not sufficiently ensure the confidentiality of private medical information. Second, the medical records of abortion patients differ in substance from the records collected in Whalen. In Whalen, the information compiled on drug use provided potentially incriminating evidence about the patients themselves, not just about the medical doctors who wrote the prescriptions. Id. at 592, 97 S.Ct. 869. Here, the private medical information sought by South Carolina is not for the purpose of investigating the female patients of abortion clinics. Rather, the State claims that such information will facilitate its investigations of the clinics providing abortion services.10 Finally, the plaintiffs in Whalen claimed to fear the disclosure of their medical records because *377of the stigma attached to the use of controlled substances. Id. at 595 n. 16, 97 S.Ct. 869. In this case, women seeking abortions in South Carolina have a great deal more to fear than stigma. The protests designed to harass and intimidate women entering abortion clinics, and the violence inflicted on abortion providers, provide women with ample reason to fear for their physical safety. See Thornburgh, 476 U.S. at 767 n. 12, 106 S.Ct. 2169.

For these reasons, the identifying information contained in medical records of women seeking services at abortion clinics in South Carolina must be kept confidential. The majority, in my view, is entirely unable to justify South Carolina’s broad access to unredacted records, and it has not shown that the purported safeguards ameliorate privacy concerns. In sum, the Disclosure Provision violates the constitutionally protected right of informational privacy, and the majority is incorrect to conclude otherwise.

II.

I also disagree with the majority on the constitutionality of § 807 of the Regulation (the “Consultation Provision”).11 The Plaintiffs maintain that the Consultation Provision unconstitutionally compels South Carolina abortion clinics to form professional affiliations with members of the clergy and entangles the State in religious matters.12 The majority, on the other hand, views the Plaintiffs’ concerns as “grounded on a substantial misreading of § 307, imputing obligations and relationships that are not prescribed by the regulation.” Ante at 363. Specifically, the majority believes that “[tjhese arrangements might amount to no more than a list of clergy and other specialists or a readily *378accessible telephone book to consult as required by the needs of a particular patient,” and that no arrangement for religious counseling need be made until a patient requests the referral. Ante at 363.

In concluding that the Consultation Provision complies with the Establishment Clause, the majority interprets the clergy referral requirement in a plainly implausible way. Under a reasonable interpretation of the Consultation Provision, abortion providers in South Carolina must establish professional affiliations with members of the clergy in order to ensure that religious consultation and referral services will be available to their female patients. And to enforce this Provision, the State inevitably must establish and enforce religious criteria. Because the Establishment Clause13 precludes South Carolina from becoming entangled with religion in this way, the Consultation Provision is unconstitutional.

A.

In South Carolina, duly promulgated state regulations, like statutes, are to “receive practical, reasonable and fair interpretation consonant with the purpose, design and policy of lawmakers.” Whiteside v. Cherokee County Sch. Dist. No. 1, 311 S.C. 335, 428 S.E.2d 886, 888 (1993). Viewed in this way, the express terms of the Consultation Provision cannot support the majority’s strained interpretation; the Provision unequivocally requires clinics to establish prearrangements for consultation services with members of the clergy. Although the services must be “available as needed,” the arrangements plainly must be made before a clinic can obtain a license. Moreover, the “arrangement” requirement of the Consultation Provision indicates that abortion providers must do more than merely make a telephone book available to their female patients. Indeed, for a female patient to have access to specialists in the fields specified in the Consultation Provision, such as anesthesiology or surgery, a telephone book would not be particularly helpful. And the majority gives no reason why the mandated “arrangements” with members of the clergy should be treated differently.

Further, the majority’s interpretation of the Consultation Provision inexplicably ignores the explicit intent of the South Carolina official who wrote the Regulation. According to Mr. Moore, the Director of Outpatient and Home Care in the Division of Licensing of DHEC, and the state official who drafted the Regulation, clinics must make prearrangements for consultation.14 In fact, Mr. Moore testified that prior arrangements are required with “maybe two or three different denomina*379tions just to be on call.” Although “[i]t probably wouldn’t be a Catholic priest,” Mr. Moore opined that they “would just have to have Protestant and whatever else.” Given the plain terms of the Consultation Provision and the unequivocal statements of its drafter, abortion providers in South Carolina must, in order to comply with the Provision, do more than merely provide their patients with a telephone book. Ante at 363.

B.

It is with this interpretation of the clergy referral requirement in mind that I turn to an assessment of the constitutionality of the Consultation Provision. In order to determine whether a regulation violates the Establishment Clause, we must apply the three-prong test that the Supreme Court articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). First, the regulation must have a secular purpose. Second, the primary effect of the regulation must neither advance nor inhibit religion. And third, the regulation must not foster an excessive government entanglement with religion. Id. at 612-13, 91 S.Ct. 2105. As explained below, the Consultation Provision clearly violates Lemon’s third prong, and it probably contravenes the second prong as well.

1.

The first prong of the Lemon test presents a fairly low hurdle for the State. Brown v. Gilmore, 258 F.3d 265, 276 (4th Cir.), cert. denied, 534 U.S. 996, 122 S.Ct. 465, 151 L.Ed.2d 382 (2001). Here, the Consultation Provision appears to have a secular purpose. The State promulgated it for the ostensible purpose of protecting maternal health and to ensure that women seeking abortion services have access to experts in a range of specialty fields. The first prong of Lemon contemplates an inquiry into the subjective intentions of the government. See Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (“[I]t is appropriate to ask ‘whether government’s actual purpose is to endorse or disapprove of religion.’ ”) (quoting Lynch v. Donnelly, 465 U.S. 668, 690, 104 S.Ct. 1355, 79 L.Ed.2d 604 (O’Connor, J., concurring)). Without more evidence of a religious purpose, the Consultation Provision survives the first prong of the Lemon test.

2.

By contrast, the Consultation Provision in all likelihood fails Lemon’s second prong. This prong’s “primary effect” test requires an objective assessment, rather than a subjective one, and it measures whether the principal effect of government action “is to suggest government preference for a particular religious view or for religion in general.” Barghout v. Bureau of Kosher Meat & Food Control, 66 F.3d 1337, 1345 (4th Cir.1995). Here, the Consultation Provision compels physicians providing abortion services to establish affiliations with religious institutions. This mandatory affiliation seems to convey the message thát the State endorses the beliefs of the religious counselors. Further, the clergy referral requirement appears to promote the religious mission of those institutions given referral arrangements.15 *380Under our Constitution, however, the government is not permitted to sponsor the indoctrination of religious beliefs in this manner.

More disturbingly, South Carolina has indicated it will play favorites among religions in enforcing the Consultation Provision.16 The interpretation given to this Provision by DHEC’s Division of Licensing unquestionably violates the hallmark of the Establishment Clause, which is that the government must be neutral with respect to different religious beliefs. According to Mr. Moore, referral arrangements with members of the clergy must include at least one Protestant minister, and they need not include a Catholic priest. This governmental preference for certain religious beliefs violates what Judge Luttig has characterized as “the most fundamental tenet of the Establishment Clause [which] is that the imprimatur of the state shall not directly or indirectly be placed upon one religious faith over another.” Id. at 1346 (Luttig, J., concurring). Given these defects, the Consultation Provision almost certainly contravenes the second prong of the Lemon test.

3.

In any event, the Consultation Provision surely fails the third prong of the Lemon test, because it excessively entangles the State with religion. Under Lemon’s final prong, the Court requires that we analyze “the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority.” Lemon, 403 U.S. at 615, 91 S.Ct. 2105. In this case, the benefited institutions are quintessentially religious. Unlike the religious groups that have elsewhere been allowed to participate in government programs, the institutions that receive the benefit of referral arrangements under the Consultation Provision are pervasively sectarian. By virtue of the Consultation Provision, churches in South Carolina have been given additional opportunities to proselytize; female patients of abortion providers will now be referred to a preacher at the direction of the State. Such a referral requirement is unprecedented, and it should be recognized as unconstitutional.

Further, the State’s enforcement of the Consultation Provision will inevitably entangle the State in religious counseling. DHEC inspectors and bureaucrats must determine not only whether the mandated clergy referral arrangements have been made, but also whether the arrangements with members of the clergy satisfy criteria that are necessarily religious. To enforce the Consultation Provision, the State must *381inquire into who qualifies as an appropriate member of the “clergy,” and it must decide whether the referral arrangements are sufficient to meet the religious needs and preferences of female patients. In requiring DHEC inspectors to determine whether abortion providers have complied with these religious requirements, the Consultation Provision excessively entangles the State in religious indoctrination. As such, it violates the Establishment Clause, and it should be invalidated.

III.

While I agree with the majority that most of the challenged aspects of the Regulation are sufficiently clear to withstand a constitutional vagueness analysis,17 I see two of those provisions as unconstitutionally vague. First, the inspectors for South Carolina have unbridled discretion to decide whether an abortion provider in that State has somehow deviated from an amorphous “best practices” requirement, which is found both in Chapter 10 and § 103 of the Regulation (the “Best Practices Provisions”). See 24 S.C.Code Ann. Regs. 61-12, Chapter 10 (Cum.Supp.2001); 24 S.C.Code Ann. Regs. 61-12, § 103(C) (Cum.Supp.2001).18 Second, under a particularly incomprehensible section, abortion clinics in South Carolina must arrange for local hospital admitting privileges for either some or all of their staffs. However, exactly which staff members are required to possess such privileges is inherently ambiguous because of an unfortunately placed “and/ or” connector found in § 305 of the Regulation (the “And/Or Provision”). See 24 S.C.Code Ann. Regs. 61-12, § 305(A) (Cum.Supp.2001).19 The majority unjustifiably and incorrectly ignores the fundamental vagueness of these Provisions.

The Due Process guarantee of the Fourteenth Amendment prohibits state statutes and regulations that are “so vague that men of common intelligence must necessarily guess at [their] meaning and differ as to [their] application.” Smith v. Goguen, 415 U.S. 566, 572 n. 8, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)). Further, such statutes and regulations may not be so vague that they invite arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); see also Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) *382(invalidating an ordinance on vagueness grounds partially because it encouraged “arbitrary and erratic arrests and convictions”); see generally City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality); Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

A.

In order to be consistent with the requirements of due process, statutes and regulations with criminal sanctions must achieve a higher level of clarity than those which provide for civil penalties only. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (“The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe”). While the majority acknowledges this principle, it inexplicably and incorrectly assumes that violations of the Regulation carry civil penalties only. Ante at 359, 366-67. On the contrary, a violation of the general licensing article of the South Carolina Code, which applies specifically to health care facilities providing abortion services to women in South Carolina, constitutes a misdemeanor criminal offense. S.C.Code Ann. § 44-7-340 (West 2002). In order to be constitutional, the Regulation’s licensing scheme must therefore be analyzed under the standard of clarity applicable to criminal offenses.

Further, even if criminal penalties were not implicated, the Regulation threatens the exercise of constitutionally protected rights. For this reason alone, it must achieve a heightened level of precision. Colautti v. Franklin, 439 U.S. 379, 391, 394, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (noting that regulations that threaten abortion rights are held to a higher level of clarity). Indeed, the constitutionally protected right to seek an abortion has been treated with such hostility that abortion providers are uniquely susceptible to being targeted by arbitrary and discriminatory enforcement. Women’s Med. Ctr. of Northwest Houston v. Bell, 248 F.3d 411, 422 (5th Cir.2001) (“Especially in the context of abortion, a constitutionally protected right that has been a traditional target of hostility, standardless laws and regulations ... open the door to potentially arbitrary and discriminatory enforcement.”). Given the fact that the South Carolina licensing scheme threatens criminal penalties, and in light of the additional fact that constitutionally protected rights are at stake, the provisions of the Regulation must be especially clear as to what is required and what is prohibited.

B.

1.

The majority candidly concedes that the “best practices” requirement makes Chapter 10 the “most unclear provision in Regulation 61-12.” Ante at 364-65. Under the Best Practices Provisions, a South Carolina abortion provider must comply with “best practices as interpreted by the Department.” 24 S.C.Code Ann. Regs. 61-12, Chapter 10 (Cum.Supp.2001); 24 S.C.Code Ann. Regs. 61-12, § 103(C) (Cum.Supp.2001). Despite recognizing that the Best Practices Provisions lack clarity, the majority fails to subject them to a vagueness analysis. The proper answers to two questions dispose of the issue: Would a person of reasonable intelligence understand what is required by the Best Practices Provisions? The answer is “No.” Is the language of these Provisions so standardless that it enables arbitrary and discriminatory enforcement? The answer is “Yes.”

The majority seems to rely, inappropriately, on a reading of the Regulation “in its entirety” in deciding to uphold the Best *383Practices Provisions. Ante at 365. The Supreme Court, however, has recently demonstrated that overbreadth and vagueness analyses are to be conducted on a provision-by-provision basis. See Ashcroft v. Free Speech Coalition, 534 U.S. -, 122 S.Ct. 1389, 1405-06, 152 L.Ed.2d 403 (2002) (analyzing different provisions of the Child Pornography Prevention Act separately and concluding that only certain subsections violated the First Amendment). Standing alone, the Best Practices Provisions contained in Chapter 10 and § 103 of the Regulation offer no guidance on the scope of their coverage, and they are therefore unconstitutionally vague.

2.

The And/Or Provision found in § 305(A) of the Regulation, as the majority acknowledges, is also “inherently ambiguous.” Ante at 364. This Provision requires that “[a]ll staff and/or consulting physicians shall have admitting privileges at one or more local hospitals.” 24 S.C.Code Ann. Regs. 61-12, § 305(A) (Cum.Supp.2001) (emphasis added). Because of the “and/ or” connector, abortion providers in South Carolina, who are subject to criminal sanctions if they violate the Regulation, lack sufficient notice as to what is required of them. Cf. United States v. Bush, 70 F.3d 557, 562 (10th Cir.1995) (discussing the inherent vagueness of an indictment with an “and/or” connector). On the one hand, the And/Or Provision might require all staff physicians and all consulting physicians to have admitting privileges at local hospitals. On the other hand, it might require either all staff physicians or all consulting physicians to have admitting privileges. To add to the confusion, the word “staff’ in this Provision could be functioning either as a noun or as an adjective. If it is a noun, it is possible to read the And/Or Provision to require that the receptionist, at every abortion clinic in the State, possess admitting privileges.

3.

In sum, neither the Best Practices Provisions nor the And/Or Provision set forth a sufficiently ascertainable standard of conduct to provide the abortion providers in South Carolina with proper notice of their scope. Therefore, we should hold each of these Provisions to be unconstitutionally vague.

rv.

Finally, the majority errs in ruling that the Regulation’s delegation of decision-making authority over abortion licensing complies with due process requirements. Several parts of the Regulation give private parties authority over the licensing of abortion providers in South Carolina. These provisions include: § 205(C)(2),20 § 305(A),21 and § 309(B)22 (collectively, *384the “Hospital Privilege Provisions”), as well as the Consultation Provision. Because these Provisions give private parties unguided power to refuse to affiliate with abortion clinics, they should be recognized as unconstitutional delegations of government licensing authority.

Because the licensing scheme spelled out in the Regulation threatens to deprive abortion providers in South Carolina of a protected property interest and to burden the liberty interest of women seeking abortions, it must comport with due process. The Due Process Clause requires licensing decisions to be based upon established standards, rather than upon the whim or caprice of the licensor. Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); see also GE Co. v. N.Y. State Dep’t of Labor, 936 F.2d 1448, 1454-55 (2nd Cir.1991); Hornsby v. Allen, 326 F.2d 605, 608 (5th Cir.1964). And if a state decides to delegate part of its licensing authority to a third party, that authority must be exercised in a manner that is consistent with due process requirements. Hallmark Clinic v. N.C. Dep’t of Human Res., 380 F.Supp. 1153, 1158-59 (E.D.N.C.1974) (three-judge panel), aff'd, in part on other grounds, 519 F.2d 1315 (4th Cir.1975).

The Plaintiffs maintain that several provisions of the Regulation constitute an improper delegation, without sufficient standards, of the State’s licensing authority. Specifically, the Plaintiffs challenge the mandate of the Hospital Privilege Provisions that physicians (and/or others) possess admitting privileges at local hospitals, and they challenge the Consultation Provision’s referral arrangement requirement. The Plaintiffs maintain that these provisions grant hospitals and medical specialists, as well as members of the clergy, an effective “veto power” over the licensing of abortion providers. The State, on the other hand, does not contend that the Regulation provides any standards or guidelines for when, or under what circumstances, third parties may refuse to affiliate with abortion providers. It relies, instead, on the irrelevant fact that such providers have not yet had difficulty obtaining licenses.

In rejecting the Plaintiffs’ delegation challenges, it is striking that the majority fails to address two contrary decisions directly on point. Indeed, a three-judge district court in this Circuit concluded that a state may not constitutionally delegate to hospitals the unbridled control over abortion licensing by conditioning a license on hospital admitting privileges. In Hallmark Clinic, Judge J. Braxton Craven, Jr., then a distinguished member of this Court from North Carolina, addressed the very question we face today, and the majority takes issue with his reasoning without mentioning his considered opinion.23 In that case, Hallmark Clinic challenged a North Carolina licensing scheme that required abortion providers to have transfer agreements with local hospitals. 380 F.Supp. at 1156. Because the challenged North Carolina regulation did not limit the discretion of hospitals to decide whether to grant such privileges, the court held that the regulation constituted an unconstitutional delegation. As Judge Craven concluded, “the state cannot confer upon a private institution the exercise of arbitrary and capricious power.” Id. at 1159. If a *385state requires that physicians have admitting privileges in hospitals in order to obtain licenses to perform abortions, “it must establish and enforce standards for admission to hospital staff privileges.” Id. Here, South Carolina, like North Carolina in the 1970s, has “given hospitals the arbitrary power to veto the performance of abortions for any reason or no reason at all. The state cannot grant hospitals power it does not have itself.” Id. at 1158-59.

In Birth Control Centers, Inc. v. Reizen, 508 F.Supp. 1366 (E.D.Mich.1981), aff'd in part and vacated in part on other grounds, 743 F.2d 352 (6th Cir.1984), a district court in Michigan invalidated a regulation similar to the North Carolina licensing scheme at issue in Hallmark Clinic. There, Michigan had promulgated a regulation requiring abortion providers to obtain transfer agreements with local hospitals before they could obtain a license. Id. at 1369. Relying on the Hallmark Clinic decision, the court struck down the Michigan regulation as an impermissible delegation of state power. See id. at 1374 (holding that hospital privilege requirements “violate due process concepts because they delegate a licensing function to private entities without standards to guide their discretion”); see also GE Co. v. N.Y. State Dep’t of Labor, 936 F.2d at 1455 (“[A] legislative body may not constitutionally delegate to private parties the power to determine the nature of rights to property in which other individuals have a property interest, without supplying standards to guide the private parties’ discretion.”).

Because the Hospital Privilege Provisions of the Regulation delegate the unfettered power to control the licensing of abortion providers, they violate the Due Process Clause. See Danforth, 428 U.S. at 74, 96 S.Ct. 2831 (“[T]he State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient’s pregnancy, regardless of the reason for withholding consent.”). In addition to other constitutional infirmities, the Hospital Privilege Provisions and the Consultation Provision (for the same reasons that apply to the Hospital Privilege Provisions) constitute standardless delegations of state power. As such, they violate the Due Process Clause and should be invalidated.

V.

In sum, the majority has misapprehended the underlying facts and misapplied the applicable law in upholding the Regulation in its entirety. Under an appropriate construction of the Regulation and an application of controlling legal principles, several of its provisions are unconstitutional. In particular, the Disclosure Provision violates the right to informational privacy; the Consultation Provision contravenes the Establishment Clause (as well as the Due Process Clause in improperly delegating state licensing authority); the And/Or Provision and the Best Practices Provisions are unconstitutionally vague; and the Hospital Privilege Provisions violate due process by unconstitutionally delegating state licensing authority.

Because the majority refuses to recognize these constitutional infirmities, I respectfully dissent.

. Although South Carolina claims that the Regulation treats abortion clinics similarly to other entities regulated by the State, several facts belie this assertion. First, as Judge Hamilton aptly pointed out the first time this case was appealed, "South Carolina does not require licensing of physicians' offices outside of the abortion context.” Greenville Women's Clinic v. Bryant, 222 F.3d 157, 178 (4th Cir.2000) (Hamilton, J., dissenting). Second, the South Carolina Department of Health and Environmental Control ("DHEC"), in writing the Regulation, specifically tailored it to abortion clinics. Id. at 184-85. Finally, the Regulation contains some provisions, such as the clergy referral requirement discussed below, see infra Part II, that are found nowhere else in the South Carolina Code.

. I express no view on whether this policy is impacted by our recent decision in Sons of Confederate Veterans, Inc. v. Commissioner of the Virginia Department of Motor Vehicles, 288 F.3d 610 (4th Cir.2002).

. Other South Carolina statutes demonstrate a similar hostility to a woman’s constitutional right to seek an abortion. See, e.g., S.C.Code Ann. § 1-1-1035 (West 2002) (prohibiting Medicaid funds from being used to fund abortions); S.C.Code Ann. § 44-41-340(A)(2) (West 2002) (requiring that women seeking abortions be provided with a brochure that includes "materials designed to inform the woman of the probable anatomical and physiological characteristics of the embryo or fetus at two-week gestational increments”); S.C.Code Ann. § 44-41-40 (West 2002) (entitling private hospitals to refuse to perform abortions).

. The majority also improperly focuses on the fact that the Plaintiffs have challenged the Regulation on its face. In United States v. *373Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), the Supreme Court articulated a "no set of circumstances” test that would, if applicable, make a facial challenge virtually impossible to win. However, the Salerno doctrine is an embattled one at best, and its continuing viability is the subject of intense debate. In any event, the Court has indicated that the Salerno standard does not apply to three of the four legal claims asserted here. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313-14, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (analyzing a facial challenge in an Establishment Clause case without applying Salerno); Stenberg v. Carhart, 530 U.S. 914, 921, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (same for privacy); Chicago v. Morales, 527 U.S. 41, 55, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality) (same for vagueness). So long as plaintiffs possess standing to raise a claim, facial challenges are generally evaluated under the same standard as any other constitutional challenge, and the majority simply confuses the issues in suggesting otherwise.

.The Disclosure Provision provides, in pertinent part, that;

Department inspectors shall have access to all ... records and reports, and shall have the authority to make photocopies of those documents required in the course of inspections or investigations.

24 S.C.Code Ann. Regs. 61-12, § 102(F)(2) (Cum. Supp .2001).

. Pursuant to § 401(A)(1) of the Regulation, abortion clinics in South Carolina are required to maintain records with various identifying information, including:

name, address, telephone number, social security number, date of birth, father’s and mother’s names when patient is a minor, husband's name, and name, address and telephone number of person to be notified in the event of an emergency.

24 S.C.Code Ann. Regs. 61-12, § 401(A)(1) (Cum.Supp.2001).

. By definition, the Regulation only applies to climes "in which any second trimester or five or more first trimester abortions per month are performed.” 24 S.C.Code Ann. Regs. 61-12, § 101(B) (Cum.Supp.2001). However, for ease of reference, I use the terms "clinics” or "providers,” without any further elaboration, to refer to those facilities subject to the Regulation.

. Section 310, regarding "Certain information not to be disclosed publicly,” states:

Information received by the Office of Health Licensing ... may not be disclosed publicly in a manner as to identify individuals or facilities except in a proceeding involving the licensure or certification of need of the facility or licensing proceedings against an employee of the facility or as ordered by a court of competent jurisdiction.

S.C.Code Ann. § 44-7-310 (West 2002) (emphasis added).

. Section 315, titled "Disclosure of information regarding facility or home,” reads, in pertinent part:

Information received by the Division of Health Licensing ... must be disclosed publicly upon written request to the department. ... The department may not disclose the identity of individuals present in a facility licensed by the department ....

S.C.Code Ann. § 44-7-315 (West 2002) (emphasis added).

. Where this Court has permitted a government entity to collect and maintain private information, the government interest has consistently related to the person whose privacy is at stake. See Walls, 895 F.2d at 192-93 *377(upholding data collection of police department applicants because of state interest in obtaining personal information of employees); Hodge v. Jones, 31 F.3d 157, 166 (4th Cir.1994) (upholding data collection of reports of child abuse to aid future investigations of parents). The majority has unjustifiably extended these earlier decisions by now allowing South Carolina to collect patient information in order to investigate clinics.

In the only situation where the need to obtain private information related to a third party, the scope of the privacy invasion was narrowly tailored to the need for disclosure. In Watson, the plaintiff, who asserted a claim against a Red Cross donation center, was allowed to obtain discovery from an anonymous blood donor. 974 F.2d at 484. Thus, the interest in obtaining the information related to the Red Cross, while it was the donor whose privacy was compromised. However, in that case, only one donor's identity was at stake, and it was revealed only to the court. The trial court allowed the plaintiff to submit questions to counsel for the anonymous donor, but the identities of the donor and the donor's counsel were known only to the court. Id. at 484, 487. In contrast, the South Carolina Regulation provides the State with access to every patient record without any judicial supervision on how the information is used.

. The Consultation Provision of the Regulation, found in § 307, requires that:

Arrangements shall be made for consultation or referral services in the specialties of obstetrics/gynecology, anesthesiology, surgery, psychiatry, psychology, clinical pathology and pathology, clergy, and social services, as well as any other indicated field, to be availáble as needed.

24 S.C.Code Ann. Regs. 61-12, § 307 (Cum. Supp.2001) (emphasis added).

. Plaintiffs also contend that the Consultation Provision improperly gives religious leaders veto authority over the issuance of abortion licenses. Because I would find that the Provision violates the Establishment Clause in excessively entangling the State with religious counseling, I would not reach the issue of whether the Consultation Provision might also give religious leaders too much authority over government functions. See generally Larkin v. Grendel's Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982). I do, however, address a similar contention in dealing with the Regulation's improper delegation of state authority. See infra Part IV.

. The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." U.S. Const, amend. 1. It has been incorporated against the states through the Fourteenth Amendment. Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 2465, 153 L.Ed.2d 604 (2002); Everson v. Bd. of Educ. of Ewing Township, 330 U.S. 1, 15-16, 67 S.Ct. 504, 91 L.Ed. 711 (1947).

. In general, an agency’s interpretation of its own regulation deserves considerable deference. See Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 560 S.E.2d 410, 415 (2002). Although a position taken in litigation (which is one way Mr. Moore’s view could be characterized) may be treated differently, a policy statement should be given deference where it reflects the considered and reasoned judgment of the agency, rather than a post hoc rationalization of an enforcement decision. See Monongahela Power Co. v. Reilly, 980 F.2d 272, 279 (4th Cir.1993). Mr. Moore's testimony therefore is entitled to consideration in assessing what the Consultation Provision requires. Further, because South Carolina inspectors have broad discretion to determine what might violate the Consultation Provision, abortion providers would be well advised to heed DHEC’s warning on how the law will be enforced.

. Unlike those situations where courts have permitted religious groups to provide state-sponsored counseling services, the message of the clergy in this case is purely religious. Further, the counseling services here must be provided by pervasively sectarian organizations. South Carolina is not merely allowing religious groups to participate on an equal basis in grant programs; it has facilitated religious indoctrination. In Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988), the Supreme Court held that religious groups could receive funds from the government in order to counsel teenagers regarding adolescent sexual relations. How*380ever, the counseling services were not inherently religious, the grant program directed that the money should be spent for secular purposes, and the groups providing counseling services were not pervasively sectarian. See id. at 604-05, 108 S.Ct. 2562 ("The services to be provided under the AFLA are not religious in character, nor has there been any suggestion that religious institutions or organizations with religious ties are uniquely well qualified to carry out those services.”) (internal citation omitted); see also id. at 610-12, 108 S.Ct. 2562.

. If the Consultation Provision is enforced in a inanner where certain religions are actually favored, as Mr. Moore suggests, it should be enjoined without applying the Lemon analysis. Larson v. Valente, 456 U.S. 228, 252, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) ("[T]he Lemon v. Kurtzman 'tests’ are intended to apply to laws affording a uniform benefit to all religions, and not to provisions ... that discriminate among religions.”); see also County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 604, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) ("Whatever else the Establishment Clause may mean ... it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed.”).

. In particular, I agree that §§ 102(J), 102(L), 201(B), 204, 205(C)(1), 301, 306-308, 501(A), 602(A), 604, 606, and 807 of the Regulation are not unconstitutionally vague.

. Chapter 10 of the Regulation provides: “Conditions arising that have not been addressed in these regulations shall be managed in accordance with the best practices as interpreted by the Department.” 24 S.C.Code Ann. Regs. 61-12, Chapter 10 (Cum.Supp. 2001). Section 103(C) similarly states that "Class III violations are those that are not classified as Class I or II in these regulations or those that are against the best practices as interpreted by the Department." 24 S.C.Code Ann. Regs. 61-12, § 103(C) (Cum. Supp.2001). The majority concentrates on Chapter 10 in discussing the "best practices” requirement. Ante at 367. However, because Chapter 10 and § 103(C) contain the same “best practices” language, I refer to them collectively as the "Best Practices Provisions.”

.Section 305(A) of the Regulation reads:

All staff and/or consulting physicians shall have admitting privileges at one or more local hospitals that have appropriate obstetrical/gynecological services or shall have in place documented arrangements approved by the Department for the transfer of emergency cases when hospitalization becomes necessary.

24 S.C.Code Ann. Regs. 61-12, § 305(A) (Cum.Supp.2001) (emphasis added).

.Section 205(C)(2) of the Regulation provides:

The facility shall enter into a signed written agreement with at least one physician board-certified in obstetrics and gynecology (if not one on staff) who has admitting privileges at one or more local hospitals with OB/GYN services to ensure his/her availability to the staff and patients during all operating hours.

24 S.C.Code Ann. Regs. 61-12, § 205(C)(2) (Cum.Supp.2001).

. I have previously designated § 305(A) of the Regulation as the “And/Or Provision.” See supra Part III. It is also one of the Hospital Privilege Provisions implicated in the improper delegation challenge to the Regulation’s hospital admitting privilege requirements.

. Section 309(B) of the Regulation provides: "Physicians shall have admitting privileges at one or more local hospitals that have appropriate obstetrical/gynecological services.” 24 S.C.Code Ann. Regs. 61-12, § 309(B) (Cum. Supp.2001).

. The Hallmark Clinic panel was convened pursuant to a statute, since repealed, that required a special three-judge court to hear and decide claims seeking to enjoin the enforcement of a state statute on constitutional grounds. See 28 XJ.S.C. § 2281 (repealed 1976). While Hallmark Clinic may not constitute binding authority in our Circuit, Judge Craven’s well-reasoned opinion, in the absence of other controlling precedent, should be considered persuasive authority and accorded great weight.